Thoughts about this or other cases — or the court in general? — Mikie

The court's decision on affirmative action is as surprising as its decision on abortion. In both cases, the court delivered on the conservative agenda because the majority of justices are conservative. It would have been much more shocking if they had upheld either one. File under "Elections Have Consequences".

It wasn't only conservatives that have had quarrels with various kinds of affirmative action.

Will the decision make a difference? Not having access to higher education is harmful from several angles, but getting a BA degree is not the ticket to career success that it once was. The percentage of workers with bachelors degrees is already pretty high.

District of Columbia 63.0%
Massechusetts 46.6%
Colorado 44.4%
Vermont 44.4%
New Jersey 43.1%
Maryland 42.5%
Connecticut 42.1%
Virginia 41.8%
New Hampshire 40.2%
New York 39.9%

Getting an advanced degree isn't the ticket it used to be either. Depending on the person's family and community background, connections, and so forth, quite a few advanced degree people end up not getting into the career slots for which they had spent so much time and money.

If affirmative action is a gateway to a BA, MA, and PhD, a ton of debt, and a run-of-the-mill job (which it will be for some) the loss isn't as great as it might seem to be.

The court's decision on affirmative action is as surprising as its decision on abortion. [ ... ] If affirmative action is a gateway to a BA, MA, and PhD, a ton of debt, and a run-of-the-mill job (which it will be for some) the loss isn't as great as it might seem to be. — BC

:up:

Looking forward to the decades to come and how much damage this court will do — and I can’t help but to still be a little annoyed by the people who encouraged apathy in 2016, because Hillary was “just as bad.” Ditto in 2020 — although thankfully that silliness didn’t prevail.

Instead of simply voting against the worst (Trump), people sat out. Now we have a major branch of government remaking America in the Federalist Society’s image. How sad.

It's such a chore reading these decisions. Particularly when one isn't paid to do so.

The Equal Protection Clause came into being after the Civil War and, when it isn't being ignored, has inspired an amount of litigation which easily rivals that inspired by the older dictates of our Constitution, which seems sometimes to have been drafted with that purpose in mind. There's a good argument, given the timing of its adoption, that it was adopted specifically to end racial discrimination, particularly against blacks. For a long time, though, it was ignored.

Then it wasn't. The Supremes began generating opinions which sanctioned legal measures which favored certain races and minorities in an effort to remediate the disfavor of them which continued regardless of the Clause. The policy behind those decisions was, I think, one which had its basis in the belief that in order to attain a society in which all would have equal protection it was necessary that the inequality which characterized the law and its enforcement be reduced by according an additional benefit to those victimized by that inequality.

The fact that the Equal Protection Law was adopted in an effort to end racial discrimination makes it rather difficult to contend that policies intended to limit or even eliminate such discrimination are in violation of it. But now the Supreme Court has revealed that racial discrimination no longer exists. So, if there ever was a basis on which desegregate schools, for example, or protect voting rights, or provide for greater access to higher education for some, there no longer is a need to do so. It follows that affirmative action instead of being supported by the Equal Protection Clause now violates it.

In fact, affirmative action has always been treated rather gingerly by the courts in light of the language of the Equal Protection Clause. The language of the Clause seems to admit of no exceptions. I think it's mistake to treat the Constitution as Holy Writ and believe we regularly find reasonable grounds on which exceptions to it may be and are made, myself. But ultimately I think that what this decision comes down to is the fact that a majority of the Supremes think, in effect, that everything's okay now; there's no discrimination anymore, or at least that discrimination is no longer a serious concern except in increasingly limited circumstances. The playing field has been leveled, saith the Supremes.

how much damage this court will do — Mikie

The court will be leaving wreckage in its wake, for sure, but affirmative action has been supported and attacked since John F, Kennedy's 1961 Executive Order 10925, which included a provision "that government contractors "take affirmative action to ensure that applicants are employed, and employees are treated during employment, without regard to their race, creed, color, or national origin." That was the first step, but legislative action followed in the 1964 Civil Rights Act. Over time the principle was extended to other activities, like education, and at the state level, applied to more factors like 'sexual orientation'.

Yes— isn’t it great that racism is behind us?

This court is a joke. No one their credibility is in the toilet.

Sure…but what is your point? Abortion has been supported and attacked as well. As has almost every other issue they’ve ruled on this term.

Yes— isn’t it great that racism is behind us? — Mikie

The Court did not hold there is no more racism. It said race could not be considered a reason to permit or deny admission into college under the Constitution. Unless you can show their reasoning is flawed from an interpretive perspective, you're just arguing you're unhappy with the result.

It said race could not be considered a reason to permit or deny admission into college under the Constitution. — Hanover

Unless it's a military academy, in which case they can.

The Court did not hold there is no more racism. — Hanover

That was a partial joke— but only partial. Yes, they’re not going to outright say it. But we shouldn’t expect that. However, take a look at Shelby v Holder. That’s pretty damn close.

you're just arguing you're unhappy with the result. — Hanover

I’m not particularly unhappy with the result. I don’t have a strong opinion about affirmative action. That doesn’t negate the fact that this court is reactionary to the extreme. What they’re systematically doing to environmental regulations, gun control, and unions is far worse in my view.

Sure…but what is your point? — Mikie

It's plain enough. I passively support free access to abortion, but organized opposition against Roe Vs. Wade has been active since 1973. I think equal access to employment and education is a good thing; lots of people support it, but passively. Steady and widespread resistance has a long history and is likely to eventually have consequences, overcoming passive support.

Today's ruling just isn't a surprise. We've been heading toward this for some time.

Fair enough I suppose. True— it shouldn’t come as a surprise.

I taught for years at a state university, and had no part in admission practices and didn't think about them. However, where AA became a factor in hiring faculty I participated in and observed, first hand, what it meant and what the results were. Gender and racial factors were made clear through word of mouth and not the written word. Instead of emphasizing academic and teaching excellence we were encouraged to think minimally competent but diverse racially or genderwise.

Nevertheless, this didn't work badly with one notable exception where moral misadventures ensued. When that individual came up for tenure, the hiring committee pressured the dean to deny tenure.

It doesn't seem this ruling affects hiring practices at universities.

we were encouraged to think minimally competent but diverse racially or genderwise. — jgill

Sounds more like a Fox News anecdote than reality. But so be it.

It doesn't seem this ruling affects hiring practices at universities. — jgill

But it would likely affect the pool of qualified candidates in the future.

The point of affirmative action in education was to intervene early-ish in the employment and wealth pipeline, as a way to redress racial disparities that are the lingering result of our history.

It's a sensible plan, but it's not clear it's been successful -- but then, compared to what? Black Americans would probably be even further behind than they are without affirmative action. And of course there's been continual litigation since it began so programs have been continuously shifting their goals and methods.

But it would likely affect the pool of qualified candidates in the future — Srap Tasmaner

Good point. But academic employment is dismal these days for many, including minorities. Adjunct professors is a way to milk the most out of individuals without providing benefits traditionally offered.

But academic employment is dismal these days for many, including minorities. — jgill

Think law school, medical school.

The point of affirmative action in education was to intervene early-ish in the employment and wealth pipeline, as a way to redress racial disparities that are the lingering result of our history. — Srap Tasmaner

That was the idea for college admission, but not necessarily to supply diversity to elite professions (to whatever extent university teaching is still an elite type job).

Actually, there are too many "elite" being produced. There are not enough elite jobs to go around for the kind of jobs elite people like to occupy where they actually run things.

Refusing service to gay people is now fine.

Today is a sad day in American constitutional law and in the lives of LGBT people. The Supreme Court of the United States declares that a particular kind of business, though open to the public, has a constitutional right to refuse to serve members of a protected class. The Court does so for the first time in its history.

The immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status.” — Sotomayor

It’s almost as if there’s a pattern.

Next up: Student loans can’t be canceled. Sorry- too bad. Unconstitutional…somehow. We’ll come up with a reason.

MAGA Supremes are pulling the plug on stare decisis in judicial review? And yet Biden still opposes 'packing the court'. :shade:

Called it:

Supreme Court Rejects Biden’s Debt Forgiveness Plan

How predictable.

So in summary:

Unions can be sued if their strikes cause any problems.

The EPA can’t regulate water that isn’t connected to other water somehow.

Racism is over. No need for affirmative action— this isn’t 1965.

Businesses can refuse service to gay people.

Students should stay in debt.

-

Nicely reflects the values of these Bush and Trump appointed lawyers.

↪Ciceronianus MAGA Supremes are pulling the plug on stare decisis in judicial review? And yet Biden still opposes 'packing the court'. :shade: — 180 Proof

Yes, I see they're at it again. I haven't read the latest opinions from On High, yet. I suspect they'll be additional examples of what I would call "Legal Scholasticism." Reasoning, sometimes intricate, based on fixed dogma which transcends precedent. I wonder how many of them were taught by Jesuits or Dominicans. Most of them are Catholics.

In fact, there are exceptions to the rule of stare decisis. There was a time when the Supremes were condemned as being activists, ignoring the rule with impunity. Now, they're reactionaries, doing just that as well.

It is clear in the opposition to this decision that racism has never ended. Even Supreme Court Justices, who should know better, jumped to attack the majority opinion.

A combination of legalese, precedent, and outright sophistry doesn’t do much to disguise the point of it all, though, the question of whether race should be a qualification in any admissions. Dissenting justices even used the ugly history of race-based discrimination to defend contemporary race-based discrimination, proving that stretching the plain meaning of language in order to skirt ethical principle is the sine qua non of jurisprudence.

Hello Mikie,

Although helping the underprivileged is something we should all strive to do, I think that the use of someone's race or gender as a criteria or indicator of need is insufficient (to accomplish the goal of helping those in need), racist, "genderist", sexist, and immoral. If a college wants to allocate funds, admission slots, etc. for underprivileged candidates, then that is perfectly fine with me--but their race, for example, should have nothing to do with that decision.

It is insufficient to achieve the goal (of helping the underprivileged), because you can most certainly have children of all races that are in desperate (or moderate) need of help and, without it, will definitely not have the majority of opportunities they otherwise could have had; and usually it is of no fault of their own. If someone uses gender, sex, or race, they are going to inevitably include people that don't need the help and will exclude people that do need it. Better indicators are financial indications (e.g., how much does their family make? What jobs do they have?), family indications (e.g., do they have a family? Are they abusive?), etc.

It is racist, sexist, and "genderist" because no person should ever be punished or rewarded for merely the skin color, sex, or gender that they have: period. These are not indicators of merit, need, or otherwise.

It is immoral because I believe that we should be striving towards a world with the maximal sovereignty of wills, and this entails disbanding from judging people on their race, sex, and gender.

I think we can salvage the good intention of affirmative action while disbanding from the bad: we can allow schools to shift their criteria to allocate help for the underprivileged that does not consider directly their race, sex, or gender.

I look forward to hearing from you,
Bob

I look forward to the time when all the esteemed legal scholars in this thread actually engage with the written decision instead of tossing about the vague idea of affirmative action as desirable/non-desirable. The devil is always in the details.

Especially since the majority opinion did NOT rule out race as a factor in admissions, but rather qualified that experiences/character/life circumstances that have occurred BECAUSE of race are still allowable when occasioning the decision related to an individual's application. In other words, using one's experience with systemic racism as a touchstone related to one's fitness for application to university has been, and is still allowable (according to the majority).

Additionally, concurring opinion by Gorsuch makes it clear that the case in question ALSO violates Title VI of the Civil Rights Act.

Love to hear from the great legal minds here how Asian American university applicants' rights have not been violated under the language in Title VI.

From a lawyer's perspective, concurring opinions are insignificant. It's the decision of the majority that's important. A concurring opinion joins in the holding of the majority, for reasons that are not stated in the majority decision. As a result, they state a rationale or argument that isn't supported by the majority. So, a concurring opinion doesn't constitute precedent. What Justice Gorsuch concludes regarding Title VI, in this case, is no more binding on a court (and of no more importance to me) than is the ass of a rattus rattus. Nonetheless, concurring opinions are cited sometimes in the hope that courts might find them persuasive on particular points, and particularly when a lawyer can't find any good authority on which to rely.

Also, I think you misunderstand the majority's decision if you think it doesn't rule out consideration of race as a factor in admissions. Let's look at that small portion of the decision you seem to latch onto:

At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. (citation omitted). But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today. (A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.) “[W]hat cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows,” and the prohibition against racial discrimination is “levelled at the thing, not the name.” (citation omitted). A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.

The majority seems to be conjuring up a kind of being, or creature, whose race and or cultural heritage subjected him or her (or they, I don't know) to discriminated against in some fashion, but who was able to overcome this as an individual (in ways somehow not arising from the individual's race or which are apart from the individual's race) and contribute to the university. I have no idea how such a determination may be made But the statement that a person must not be treated on the basis of race seems rather clear.

What the majority prohibits is consideration of race as a factor in admissions, clearly enough. That consideration was allowed in the past under other case law which it was thought met the "strict scrutiny" standards which have to be met for governmental action to sanctioned though it is constitutionally questionable.

There are four black CEO's in the Fortune 500. Why do you think that it is?

I look forward to the time when all the esteemed legal scholars in this thread actually engage with the written decision instead of tossing about the vague idea of affirmative action as desirable/non-desirable — Voyeur

And then you go on to do the exact same thing.

Pretty easy to ignore.

does a good job explaining it though.



Hi Bob.

I see your point— it’s a reasonable one. But I’m not sure your characterization of AA is correct. There’s strong arguments in favor of it.

As I said elsewhere, I’d be happy to engage with the details of the case and the holding— but I can’t in good conscience pretend that this isn’t coming from a reactionary court who manages to find any reason to push forward their Federalist Society agenda. That makes me very suspicious of their justifications— just as it did with Dobbs and todays ruling on student loans.

It’s fairly predictable what they will rule. Even the independent legislature theory, which was ridiculous — though they ruled against it, it is not completely dead. That’s telling.

It’s clear what these judges want to do. Yes, we can pretend this case or that case was decided on principles and get into the weeds on each one, but first look at the overall trend.

The long-winded legal contortions and justifications and posturings don’t truly merit much energy when one can do easily predict what the ruling will be beforehand — as I did and anyone can.

Every one of these controversial cases are along party lines. When things are so predictable, you know it’s not a matter of a fair assessment of evidence — it’s foregone.